Proskauer Rose LLP

This special report provides a summary of some of the significant changes and developments that occurred in the past year in the private equity and hedge funds space, as well as certain recommended practices that investment…more

There was a time not long ago when the odds of beating the Federal Trade Commission on a hospital merger antitrust challenge were slim. Two recent defeats, however, may change that some. Late last year, the FTC, in quick…more

This special report provides a summary of some of the significant changes and developments that occurred in the past year in the private equity and hedge funds space, as well as certain recommended practices that investment…more

Proskauer's Labor and Employment Law Department released its Value Insights: Delivering Value in Labor and Employment Law survey, a resource that illuminates current practices and future trends in managing labor and employment…more

Last week, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it had finalized its rule for new EEO-1 pay equity reporting requirements. The final rule has not yet been published in the Federal Register…more

This special report provides a summary of some of the significant changes and developments that occurred in the past year in the private equity and hedge funds space, as well as certain recommended practices that investment…more

On April 18, 2016, the Supreme Court heard oral argument in a major immigration suit, United States v. Texas. This case is a highly-politicized lawsuit in which dozens of states have sued the federal government over what is…more

Last week, the Office of Federal Contract Compliance Programs announced a Final Rule prohibiting discrimination based on sexual orientation and gender identity by federal contractors and subcontractors. The Rule implements…more

Proskauer has released the 2015 Proskauer Annual Review and Outlook for Hedge, Private Equity and Other Private Funds. The 88-page report is a summary of significant legal changes and developments in the private funds space…more

Editor's Overview -
This month we take a look at the plaintiffs' past successes in fee litigations, and the influx of such lawsuits seeking to impose heightened fiduciary standards for 401(k) plans. Regardless of the…more

Proskauer's Global Capital Markets Group presents the third annual IPO Study, a comprehensive analysis of U.S.-listed initial public offerings in 2015 and identification of three-year comparisons and trends of U.S.-listed…more

Employers in the District of Columbia have been assessing how to deal with the requirements of the Wage Theft Prevention Act of 2014 (the “2014 Act”) since the 2014 Act was passed last year. Among other things, the 2014 Act…more

While attorneys provide legal advice to their clients, they are sometimes the recipients of such advice from their own counsel, including in-house firm counsel. Agreeing with recent decisions by the highest courts of Georgia and…more

In a recent opinion out of the District of Massachusetts, the court ordered that a patent infringement dispute between two Massachusetts-based competitors in the lighting systems industry would be allowed to proceed. This…more

In a rare reversal of its own administrative law judge in the Matter of optionsXpress, the full Securities and Exchange Commission unanimously held that the SEC’s Enforcement Division had not met its burden of proof that the…more

On October 13, 2016, the Treasury Department and the Internal Revenue Service issued final and temporary regulations under section 385 of the Internal Revenue Code. The final and temporary regulations recharacterize certain debt…more

The Supreme Court confirmed today that the "personal benefit" required to establish a claim for insider trading can consist of making a gift of material, nonpublic information to a family member or friend and that an exchange of…more

On April 4, 2016, the U.S. Commodity Futures Trading Commission (CFTC) issued its third and largest award, of more than $10 million, as part of its Dodd-Frank whistleblower program. As was the case with the CFTC’s two previous…more

Taxation of termination payments draft legislation published -
At present, in certain circumstances the first £30,000 of a termination payment is exempt from income tax and national insurance ("NIC"). However, there have…more

Editor's Overview -
This month we focus on the EEOC's proposed rules concerning wellness programs. As our colleague, Amy Covert, discusses, a recent change of position by the EEOC provides employers with opportunities to…more

Effective January 1, 2017, the Illinois Freedom to Work Act (the “Act”) will prohibit private sector employers from entering into non-competition agreements with employees earning a “low wage.” The Act defines low-wage…more

Massachusetts has passed an amendment to the state’s equal pay law aimed at strengthening prohibitions on gender discrimination in the payment of wages for comparable work. The new bill, signed by Governor Charlie Baker (R) this…more

Who's First in Ownership of the "Sweet Spot" Remains Unclear -
Baseball is often called a "game of inches," whether one is describing the strike zone, a close play at the plate, or a liner past third base that just kicks up…more

"Prophesy is a good line of business, but it is full of risks." Mark Twain could have been speaking about the FTC's recent challenge to a merger between the second- and third-largest sterilization companies in the world, Steris…more

The U.S. Supreme Court issued its decision Thursday in Alice Corp. Pty Ltd. v. CLS Bank Int'l, et al., holding that an otherwise unpatentably abstract idea does not become patentable simply by implementing it on a generic…more

The Second Circuit is once again seeking guidance from the New York Court of Appeals, this time on the question of the appropriate standard for awarding punitive damages for unlawful discriminatory acts under the New York City…more

For thirty-two years, it has been a settled proposition that an employer may, upon the expiration of a contract, refuse to continue to negotiate with a “mixed-guard” union that represents its security guards. Continuing its long…more

In an order dated June 14, 2016, the Securities and Exchange Commission (SEC) adopted its prior proposal to increase the net worth threshold for "qualified clients" under Rule 205-3 of the Investment Advisers Act of 1940 (the…more

Amended in December alongside many other rules in the Federal Rules of Civil Procedure, Rule 34(b)(2)(B) now requires that objections to document requests be stated with “specificity.” The early applications of the amended rule…more

This month we discuss the evolving case law on the issue of whether unpaid employer contributions due under a collective bargaining agreement can be viewed as plan assets such that the individuals who decide to withhold such…more

As the July 1, 2014 compliance date of the New York Nonprofit Revitalization Act of 2013 (the "Revitalization Act") quickly approaches, many charities operating in New York are confronting some difficult rollout challenges…more

This special report provides a summary of some of the significant changes and developments that occurred in the past year in the private equity and hedge funds space, as well as certain recommended practices that investment…more

On July 19, 2016, the European Securities and Markets Authority (ESMA) published its final advice (Advice) on extending the application of the marketing passport under the Alternative Investment Fund Managers Directive (AIFMD)…more

In a recent order, Judge Douglas P. Woodlock of the District of Massachusetts untangled a complicated timeline to decide motions for summary judgment regarding several copyright infringement and related claims on a statute of…more

This special report provides a summary of some of the significant changes and developments that occurred in the past year in the private equity and hedge funds space, as well as certain recommended practices that investment…more

On November 2, 2015, President Obama signed into law H.R. 1314, the Bipartisan Budget Act of 2015 (the "Act"), which significantly changes Medicare reimbursement for off-campus hospital services. The Act, which Congress passed…more

The Modern Slavery Act 2015 is new legislation introduced in the UK with the intention of combatting slavery and human trafficking. Continuing the trend for legislation to have extra-territorial reach, as illustrated by the UK…more

We have previously written about the updated sex discrimination guidelines recently published by OFCCP. Among other mandates, the guidelines require federal government contractors to provide paternity leave on an equal basis to…more

The health care industry is in the midst of a revolution caused by demographic changes, advancements in medical understanding and, of course, Obamacare. As health care providers scramble to adjust to this brave new world, the…more

On December 8, the Fifth Circuit Court of Appeals granted the U.S. Department of Labor’s motion seeking an expedited briefing schedule on its appeal of the district court injunction of the overtime rule that was scheduled to…more

Proskauer's Labor and Employment Law Department released its Value Insights: Delivering Value in Labor and Employment Law survey, a resource that illuminates current practices and future trends in managing labor and employment…more

Yesterday, the National Labor Relations Board (“the Board”) issued its long awaited decision in Columbia University. Not surprisingly, the Board, in a 3-1 decision, overturned 12 years of precedent by ruling that “student…more

Over the past month, there have been many reports that the FCC would soon publish an NPRM classifying an online video distributor (OVD) that delivers linear streams of video programming as an MVPD ("multichannel video…more

On April 6, 2016, the U.S. Department of Labor (DOL) issued its highly anticipated final rule addressing when a person is considered to be a fiduciary under the Employee Retirement Income Security Act of 1974 (ERISA) and the…more

Proskauer's Global Capital Markets Group presents the third annual IPO Study, a comprehensive analysis of U.S.-listed initial public offerings in 2015 and identification of three-year comparisons and trends of U.S.-listed…more

Recent amendments to Canada’s trademark laws, which are expected to take effect as soon as late next year, will introduce a number of significant changes for owners of Canadian trademark registrations and applications. Various…more

On June 22, 2016, Judge Daniels of the Southern District of New York dismissed SOX and Dodd-Frank whistleblower claims, ruling that Plaintiff’s alleged internal complaints did not constitute protected activity, as they did not…more

The Financial Accounting Standards Board (“FASB”) has issued an exposure draft of a Proposed Accounting Standards Update, Presentation of Financial Statements of Not-for-Profit Entities, which would make significant changes to…more

On October 19, the Court of Justice of the European Union (CJEU) ruled that dynamic IP addresses may qualify as “personal data” under EU privacy law. As we covered here on the blog a few months ago, this decision is significant…more

2017 Estate, Gift and GST Tax Update: What This Means for Your Current Will, Revocable Trust and Estate Plan -
As we previously reported, the American Taxpayer Relief Act of 2012 (the "Act") made the following permanent:…more

On July 30, 2016, newly-elected British Prime Minister, Theresa May, wrote an article detailing how her government would lead the charge in combatting modern slavery. As a major proponent of the UK Modern Slavery Act (and one…more

Many people will be familiar with the information gathering and reporting requirements the OECD’s Common Reporting Standard (“CRS”) places on financial institutions. The first exchanges of information between tax authorities…more

On October 4, 2016, the Fifth Circuit in Reyna v. International Bank of Commerce instructed district courts that when the issue of arbitrability is raised in a prompt motion to compel, it should be decided at the outset of the…more

The Obama administration has finalized a number of employment-related regulations over the past few months, including rules on overtime, worker benefits, paid sick leave for employees of federal contractors, and union elections…more

Editor's Overview -
In this month's newsletter, we focus on the recent wave of guidance and case law related to the Affordable Care Act. We also discuss IRS Notice 2015-86, which provides guidance on the application of the…more

Proskauer's Global Capital Markets Group presents the third annual IPO Study, a comprehensive analysis of U.S.-listed initial public offerings in 2015 and identification of three-year comparisons and trends of U.S.-listed…more

Yesterday, the National Labor Relations Board (“the Board”) issued its long awaited decision in Columbia University. Not surprisingly, the Board, in a 3-1 decision, overturned 12 years of precedent by ruling that “student…more

On January 17, 2014, the National Labor Relations Board Judge Lisa D. Thompson concluded that an agreement that did not prohibit class or collective action still violated Section 8(a)(1) of the National Labor Relations Act…more

We recently blogged about Governor Brown signing S.B. 1241, which is now codified as Section 925 of the California Labor Code. The law, which affects venue and choice of law provisions in agreements entered into as a condition…more

In a recent application of the Supreme Court’s 2014 Lexmark decision on standing, the Court of Appeals for the Third Circuit held last month that a yarn retailer who alleged it was misled by its supplier into purchasing…more

On February 6, the SEC filed its third amicus brief defending its interpretive rule on Dodd-Frank’s anti-retaliation provision, 15 U.S.C. §78u-6(h)(1). The impetus is a ruling out of the Southern District of New York in Berman…more

Editor’s Overview -
In this issue of Proskauer's ERISA Litigation Newsletter, we review a recent ruling by the Tenth Circuit Court of Appeals concerning the application of controlled group principles to the building and…more

The Bipartisan Budget Act of 2015, signed into law on November 2, 2015, has significantly changed the partnership tax audit rules, effective for tax years beginning after December 31, 2017.
Under the current partnership…more

This special report provides a summary of some of the significant changes and developments that occurred in the past year in the private equity and hedge funds space, as well as certain recommended practices that investment…more

On January 16, 2015, the SEC withdrew its December 1, 2014 no-action letter in which it concurred with the view of Whole Foods Market, Inc. that the company was entitled under SEC Rule 14a-8(i)(9) to exclude from its proxy…more

Recent amendments to Canada’s trademark laws, which are expected to take effect as soon as late next year, will introduce a number of significant changes for owners of Canadian trademark registrations and applications. Various…more

Last week, the DOJ announced its first corporate enforcement action under the Foreign Corrupt Practice Act (“FCPA”) for 2015. IAP World Services, Inc., a Florida-based defense and government contractor, agreed to pay $7.1…more

Who's First in Ownership of the "Sweet Spot" Remains Unclear -
Baseball is often called a "game of inches," whether one is describing the strike zone, a close play at the plate, or a liner past third base that just kicks up…more

The United Kingdom (UK) has voted to leave the European Union (EU). Although the vote will have long term implications, in the short term there will be no change to the current legal and regulatory status quo; the UK will remain…more

This special report provides a summary of some of the significant changes and developments that occurred in the past year in the private equity and hedge funds space, as well as certain recommended practices that investment…more

Plaintiff Broadcast Music, Inc. (“BMI”), a music rights management organization that offers licenses to a massive catalogue of popular songs on behalf of copyright owners, brought suit for copyright infringement against the…more

In a clear sign of the increased awareness – and effectiveness – of the SEC’s whistleblower program, the SEC awarded five whistleblowers a total of over $26 million for their assistance in four separate enforcement actions…more

This month we review a recent Second Circuit decision addressing ERISA plan status as a class member in a securities shareholder class action. As discussed in the article, the decision exposes a potential conflict among the…more

The Hong Kong government has announced in its latest budget a planned extension of the existing offshore funds tax exemption to bring offshore private equity funds investing in or through Hong Kong, within its scope. The scope…more

Regulators were busy at the end of 2015, especially in the United States, perhaps being motivated to push forward new rule proposals in anticipation of a change in administration after the presidential elections later this year…more

Editor's Overview -
Happy New Year! Because 401(k) plans play an increasingly prominent role as an employee's principal retirement investment vehicle, fiduciaries overseeing those plans face increased pressure to see them…more

This week, the United States Court of Appeals for the Second Circuit sharply limited employers’ ability to challenge the adequacy of the EEOC’s pre-suit investigations. The Court issued an opinion vacating a district court…more

As reported by Ryan Barber of the National Law Journal, the Trump administration could change the trajectory of the SEC whistleblower office, potentially halting the SEC’s recent strict scrutiny of potential impediments for…more

Editor's Overview -
This month, we look at the implications of the two federal district court cases from California that applied the ban on discretionary clauses typically found in ERISA plans to self-insured plans. The…more

This month we review a recent Second Circuit decision addressing ERISA plan status as a class member in a securities shareholder class action. As discussed in the article, the decision exposes a potential conflict among the…more

How can a website operator lose the broad immunity for liability associated with user-generated content conferred by Section 230 of the Communications Decency Act (CDA)?
Section 230 has been consistently interpreted by most…more

On February 25, 2014, in Kaley v. United States, the U.S. Supreme Court held 6-3 that criminal defendants challenging the legality of a §853(e)(1) pre-trial asset seizure may not contest a grand jury's determination of probable…more

We wrote here previously regarding the Sixth Circuit’s decision in Shane Group v. Blue Cross Blue Shield of Michigan vacating a class action settlement because the district court improperly refused to unseal the parties’…more

In Hartford Accident and Indemnity v. Crum & Forster Specialty Insurance et al., the Eleventh Circuit recently reversed a District Court’s decision refusing to vacate its prior judgments even though vacatur was a condition of a…more

The United States Environmental Protection Agency (EPA) recently issued its final rule amending the standards and practices for conducting environmental "all appropriate inquiries" to include a new standard recently made…more

Editor's Overview -
This month, we have re-published an interview of our colleague Seth Safra discussing the Department of Labor’s final regulation concerning fiduciaries and conflicts of interest. In this interview, Seth…more

The Modern Slavery Act 2015 is new legislation introduced in the UK with the intention of combatting slavery and human trafficking. Continuing the trend for legislation to have extra-territorial reach, as illustrated by the UK…more

Prosecutors in the District of Connecticut have appealed a district court’s ruling that conspiracy and aiding and abetting charges cannot be used to extend the FCPA’s jurisdictional reach.
The FCPA has three…more

On April 7, 2016, the U.S. Citizenship and Immigration Services (USCIS) announced that it received more H-1B petitions than available under the statutory cap of 65,000 general-category visas and 20,000 U.S. Master's visas for…more

The extraordinary images and reports of the devastation from Hurricane Matthew have filled the news outlets. While the focus remains on the human toll and concern for the well-being of friends, colleagues and business partners…more

On November 2, 2015, President Obama signed into law H.R. 1314, the Bipartisan Budget Act of 2015 (the "Act"), which significantly changes Medicare reimbursement for off-campus hospital services. The Act, which Congress passed…more

In 1995, the Federal Trade Commission and the Department of Justice first issued the Antitrust Guidelines for the Licensing of Intellectual Property. They represent the antitrust enforcement policy of the agencies with respect…more

Taxation of termination payments draft legislation published -
At present, in certain circumstances the first £30,000 of a termination payment is exempt from income tax and national insurance ("NIC"). However, there have…more

With the date for the introduction of the new regulatory regime for IPO sponsors now just a matter of weeks away on October 1, 2013, the Hong Kong market has witnessed further action taken by the Securities and Futures…more

Private organizations not affiliated with the United States Patent and Trademark Office (USPTO) often use the USPTO's publicly available trademark database to obtain applicant information, and then disseminate deceptive,…more

In Federal Trade Commission v. Actavis, Inc., the Supreme Court, in a 5-3 decision written by Justice Breyer, reversed the Eleventh Circuit's dismissal of an FTC complaint under Section 5 of the Federal Trade Commission Act[1]…more

On October 13, 2016, the Treasury Department and the Internal Revenue Service issued final and temporary regulations under section 385. The final and temporary regulations recharacterize certain debt instruments as equity for…more

Editor's Overview -
This month we focus on the EEOC's proposed rules concerning wellness programs. As our colleague, Amy Covert, discusses, a recent change of position by the EEOC provides employers with opportunities to…more

A recent order from the District of Massachusetts sheds light on how the Supreme Court’s June 2016 decision in Halo Electronics v. Pulse Electronics is being interpreted by the district courts. The Memorandum and Order by Chief…more

In January 2011, David Cheng (Plaintiff) filed a lawsuit against his former co-worker and fellow radiologist, Laura Romo (Defendant), alleging a violation of the Stored Communications Act (SCA) and Massachusetts privacy law…more

Earlier this month, the U.S. Court of Appeals for the Second Circuit issued a consequential opinion on the meaning and scope of what has become the "transformative use" factor of the fair use defense to copyright infringement…more

Regulators were busy at the end of 2015, especially in the United States, perhaps being motivated to push forward new rule proposals in anticipation of a change in administration after the presidential elections later this year…more

Editor's Overview -
It has been a little more than one year since the U.S. Supreme Court altered the legal landscape for litigating ERISA breach of fiduciary duty claims relating to the investment in employer stock funds. …more

Finding that the Plaintiffs lacked Article III standing to pursue their case, Google, Inc. (“Google”) won dismissal of the Android users’ putative class action lawsuit after more than three years of litigation. In re Google…more

The Securities and Exchange Commission today announced its enforcement results for fiscal year 2016, reaching new highs in the number of actions filed and money ordered forfeited through disgorgement and penalties. The SEC…more

An en banc decision from the Federal Circuit last week overruled a line of cases governing the interpretation of functional claim language, calling into question how courts, the PTO, and industry will treat such language in the…more

On January 27, 2015 the Federal Trade Commission (the “FTC”) issued a report detailing best practices and recommendations that businesses engaged in the Internet of Things (“IoT”) can follow to protect consumer privacy and…more

On February 25, 2014, in Kaley v. United States, the U.S. Supreme Court held 6-3 that criminal defendants challenging the legality of a §853(e)(1) pre-trial asset seizure may not contest a grand jury's determination of probable…more

The Obama administration has finalized a number of employment-related regulations over the past few months, including rules on overtime, worker benefits, paid sick leave for employees of federal contractors, and union elections…more

The United Kingdom (UK) has voted to leave the European Union (EU). Although the vote will have long term implications, in the short term there will be no change to the current legal and regulatory status quo; the UK will remain…more

In early August, the D.C. Circuit refused to allow victims of terror attacks to take control of the Internet domain names of Iran, North Korea, and Syria as a means of satisfying previous money judgments awarded to the victims…more

Accept an unpalatable offer, or reject it and risk getting much less (or even nothing)? This is the choice stakeholders in chapter 11 bankruptcies increasingly face as a result of the proliferation of “deathtrap” provisions in…more

We recently blogged about Governor Brown signing S.B. 1241, which is now codified as Section 925 of the California Labor Code. The law, which affects venue and choice of law provisions in agreements entered into as a condition…more

In Securities and Exchange Commission v. Huang, the district court held that the Fifth Amendment protected two former employees against having to disclose their personal passcodes for company-issued smartphones to government…more

Less than one month after issuing a $22 million award, the SEC issued another multi-million dollar whistleblower award on September 20, 2016. The SEC’s most recent award exceeded $4 million.
The SEC issued its typical…more